ECONOMY

338 constitutions as expressive documents
Desiring to guarantee the rights of the citizens for all time, and to ensure diligence and
efficiency in the work of public bodies,
Recognizing our responsibility before God or our own consciences,
Hereby establish this Constitution of the Republic of Poland as the basic law for the State,
based on respect for freedom and justice, cooperation between the public powers, social
dialogue as well as on the principle of subsidiarity in the strengthening the powers of citizens
and their communities.
Here, the Polish constitution identifies a re-emergent national identity, linked to
earlier republics and to the Christian tradition.
These examples may be supplemented by reference to recent attempts to write a
new preamble for the Australian constitution as discussed by McKenna (2004). The
people appointed (and self-appointed) to this task have been mainly poets/authors,
rather than constitutional lawyers. What at first caused McKenna surprise—as a
political scientist—was the “moving, highly personal, even intimate” quality of these
contending preambles. McKenna’s initial response was skeptical:
While I admired [a particular draft] preamble as a piece of creative writing, my training in
political science had me wondering how the High Court might find his attempt to emulate the
Book of Genesis useful in interpreting the constitution. (2004, 29)
Yet McKenna’s more reflective judgement is different—“I came to see their fanciful
nature as positive” (p. 29). We would suggest that this change of view marks a shift
from the instrumental to the expressive perspective. What is most striking to us is
McKenna’sviewthatthefactthat“Sinceitsinceptionin1901, the federal constitution
has not figured greatly in explaining our identity or character” speaks to a certain
kind of failure. Here is McKenna’s perspective:
We are a nation forged through remembering the human sacrifice and horror of war, a people
whose most profound political instincts lie outside the words of our constitution. While we
live under a written constitution, the values and principles of our democracy remain largely
unwritten—truths embodied in the practice of daily life—truths we have yet to distil. If
Australians can be said to have a constitution in any real sense it is an imaginary constitution.
One comprised of scraps of myth and wishful thinking that bears little relation to the text of
the document itself...Finding the right words to express the uniqueness of this land and the
depth of our relationship with it could serve to promote a sense of popular ownership of the
constitution. If the constitution touches ordinary Australians, if it speaks to the living and not
to the dead, then the people are more likely to vote for it. (p. 32)
For McKenna, then, a reasonable claim on a written constitution is that it should
express the common identity of the citizenry, and the source of the citizen’s attachment
to the nation. McKenna is surely not alone when he looks to the constitution to
deliver an expression of national unity, or when he assesses the extant constitution
in those terms. And this suggests that a written constitution that operates as an
expressive document is not necessarily a mark of failure, so much as a recognition
that a written constitution may do more (and less) than lay out the rules of the
political/social/economic game.